Subject: [hrpc] Fwd: Internet Infrastructure and IP Censorship by David Post

From: Joana Varon <[email-masked]>
Date: Mon, 03 Aug 2015 18:48:27 +0200

Dear all,
This might be interesting to have a look at.
best
joana

-------- Original Message --------
Subject: Internet Infrastructure and IP Censorship by David Post
Date: 2015-08-03 17:10
 From: Robin Gross

Hi all,

NCSG member David G. Post has written a compelling new article on the
DNS as a tool of censorship:
  
http://www.ipjustice.org/digital-rights/internet-infrastructure-and-ip-censorship-by-david-post/
[3]

IP JUSTICE JOURNAL: INTERNET INFRASTRUCTURE AND IP CENSORSHIP BY DAVID
POST

  [4]

INTERNET INFRASTRUCTURE & IP CENSORSHIP

BY DAVID G. POST – AUGUST 1, 2015

Many scholars and other observers of developments in Internet
governance, law, and policy have commented upon an unusual and important
phenomenon that has become more widespread in recent years: using
control over access to critical portions of the Internet’s technical
infrastructure – the system comprising the underlying protocols for
routing, naming, and addressing, along with related technical standards
and the agreements, formal and informal, through which they are
implemented across the Internet, what Laura DeNardis calls “Critical
Internet Resources” (CIRs)[2] [5] – to enforce private and public
law.

Three examples illustrate the nature of this new phenomenon.

1. THE UDRP In the realm of private law and the enforcement of private
rights, the paradigmatic illustration is ICANN’s[3] [6]Uniform Dispute
Resolution Procedure (UDRP).[4] [7] The UDRP is an ICANN-operated
mandatory arbitration process that deals with “cyber-squatting,”
_i.e.,_ the practice of registering domain names that mirror (or closely
resemble) existing trademarks, for the purpose of re-selling the domain
name to the trademark owner. The UDRP allows a trademark holder to
submit a cyber-squatting complaint to an ICANN-accredited arbitrator,
who is charged with applying ICANN’s substantive rules[5] [8] for
determining whether the cyber-squatting offense has been committed.

Decisions by the UDRP arbitrators are enforced _solely_ through control
over a particular CIR – the Internet’s domain name system
(“DNS”).[6] [9] That is, UDRP arbitrators can’t award monetary
damages of any kind, nor can they impose any punishment or other
liability on the offending cyber-squatters themselves; instead, if they
rule in the trademark owner’s favor, they are authorized only to
either (a) cancel the offending domain name registration, _i.e., _to
remove it from the set of interlocking databases constituting the DNS,
or (b) transfer the registration from the defendant to the trademark
holder, _i.e., _to substitute the trademark holder for the defendant in
those database entries.

The arbitrator accomplishes this by ordering the domain name
_registrar_[7] [10] that issued the offending registration to delete (or
modify, in the case of a transfer) the database entry corresponding to
that domain name, and to communicate that deletion/modification to the
relevant domain name _registry._ Enforcement of the arbitrator’s order
is assured by the contracts under which ICANN enforces its policies
across the DNS:[8] [11] _Registrars_ must promise, as a condition of
obtaining and maintaining ICANN’s accreditation, to enforce all UDRP
orders;[9] [12] _registries,_ in turn, must promise, as a condition of
obtaining and maintaining _their_ accreditation with ICANN, to only do
business with ICANN-accredited registrars, and to process all
UDRP-imposed changes communicated to them by registrars; and, finally,
registrars promise to issue domain names only to_registrants_ who agree,
in _their_ contracts with registrars, to be bound by UDRP decisions.

> Thus, although ICANN itself has no formal regulatory or law-making
> authority, its UDRP rules and procedures apply globally, binding _all_
> domain name registrants, registrars, and registries in _all_ TLDs
> under ICANN’s control,[10] [1]wherever they may be located, to
> comply with ICANN-promulgated cyber-squatting rules.

It’s a tightly woven enforcement web, and over the 15 years or so of
its existence, the UDRP has proven to be a remarkably powerful global
conflict-resolution system; as of 2013, over 50,000 cases, from 175
countries, had been disposed of quickly and efficiently[11] [13] (though
whether they have done so fairly is very much open to dispute[12] [14]).
It derives a great deal of its power from its ability to solve three of
the most challenging problems surrounding law enforcement on a largely
borderless medium like the Internet: (1) the problem of choice of law
(_i.e.,_ determining _whose_ substantive rules apply to conflicts
involving persons located in different countries), (2) the problem of
judgment enforcement (_i.e., _obtaining enforcement of a legal judgment
issued in one jurisdiction against a wrongdoer located in a different
jurisdiction), and (3) the problem of scale (_i.e.,_functioning
effectively across a medium that is, as James Grimmelmann nicely put it,
“sublimely large,”[13] [15] and one that continues to expand in size
at an exponential rate). Under the UDRP, one set of rules – ICANN’s
– applies to all disputes, eliminating the choice of law problem. They
can be effective entirely without reference to the physical location of
_any_ of the parties involved – the complaining trademark owner, the
domain name registrant, the registrar who issued the domain name in
question, or the registry of the relevant TLD – because they can be
enforced through the globally-effective domain name databases
themselves. And because the UDRP leverages off of existing automated
mechanisms to process domain name registration information,[14] [16] it
can operate effectively at Internet scale; it is impossible to imagine
any set of national courts managing to process this volume of litigation
as quickly, and at such low cost.[15] [17]

2. SOPA/PIPA The UDRP was, in a sense, “proof of concept”: control
over the DNS can serve as effective leverage to enforce legal rights
Internet-wide. Perhaps because “cyber-squatting” covers a relatively
narrow slice of conduct, it has not received (and probably does not
warrant) an enormous amount of public attention. But such was not the
case for the second example of DNS-based enforcement, the ill-fated Stop
Online Piracy Act (SOPA) (and its companion bill, the Protect-IP Act
(PIPA) introduced in the U.S. Congress in 2011.

SOPA/PIPA targeted the activities of “foreign infringing websites,”
and would have authorized federal prosecutors, and private rightsholders
in certain circumstances, to “seize” the domain names associated
with such sites.[16] [18] If the court agreed that the site in question
was a “foreign infringing site . . . dedicated to the theft of U.S.
property,” or had “facilitated the commission of” infringing acts,
the statute authorized it to order a wide range of Internet
intermediaries – ISPs, domain name registrars, and domain name
registries, along with a variety of financial intermediaries – to take
“all technically feasible and reasonable measures” to prevent
end-user access to those sites, including “measures designed to
prevent the domain name of the foreign infringing site (or portion
thereof) from resolving to that domain name’s IP address.”

Many factors contributed to the astonishing and unprecedented “surge
of mobilization” that greeted (and ultimately overwhelmed) SOPA and
PIPA,[17] [19] but one important component of the extraordinary public
campaign against the bills was the notion that the bills threatened, in
the words of one of the influential documents published at the time, to
“break the Internet” through its use of court-ordered DNS
filtering:[18] [20]

[T]he bills represent an unprecedented, legally-sanctioned assault on
the Internet’s critical technical infrastructure. Based upon nothing
more than an application by a federal prosecutor (or, in certain
circumstances, an intellectual property rights holder) alleging that a
foreign website is “dedicated to infringing activities,” Protect IP
authorizes courts to order all U.S. Internet service providers, domain
name registries, domain name registrars, and operators of domain name
servers – a category that includes hundreds of thousands of small and
medium-sized businesses, colleges, universities, nonprofit
organizations, and the like – to take steps to prevent the offending
site’s domain name from resolving to the correct Internet protocol
address, . . . even when the domains in question are located outside of
the United States, and registered in top-level domains (e.g., .fr, .de,
or .jp) whose operators are themselves located outside the United
States[.]

Directing the remedial power of the courts towards the Internet’s
technical infrastructure in this sledgehammer fashion . . . threaten[s]
the fundamental principle of interconnectivity that is at the very heart
of the Internet. The Internet’s Domain Name System (“DNS”) is a
foundational building block upon which the Internet has been built and
upon which its continued functioning critically depends; it is among a
handful of protocols upon which almost every other protocol, and
countless Internet applications, rely to operate smoothly. Court-ordered
removal or replacement of entries from the series of inter-locking
databases that reside in domain name servers and domain name registries
around the globe undermines the principle of domain name universality
– the principle that all domain name servers, wherever they may be
located across the network, will return the same answer when queried
with respect to the Internet address of any specific domain name. Much
of Internet communication, and many of the thousands of protocols and
applications that together provide the platform for that communication,
are premised on this principle.[19] [21]

The defeat of SOPA/PIPA has not, however, stopped US law enforcement
efforts to fight alleged overseas intellectual property infringement
using the DNS as the primary enforcement tool. Prof. Annemarie Bridy has
comprehensively documented the Department of Homeland Security’s use
of the civil forfeiture provisions of federal law to “seize”
thousands of domain names in recent years on the grounds that they
“facilitated the production or distribution of infringing content,”
accomplished by ordering the relevant domain name registries to redirect
web traffic from the “seized” domains to a site displaying an
anti-piracy banner bearing the logos of Homeland Security
Investigations, the IPR Center, and the DOJ. [20] [22]

3. ICANN AND THE “PUBLIC INTEREST”

Compelling domain name registries and registrars to enforce arbitrator
awards (Illustration 1) or court orders (Illustration 2) as a way to
police access to the DNS is not the only way in which this portion of
core Internet infrastructure can be utilized for private and public law
enforcement purposes. A third example – somewhat more complicated than
the first two, but no less troubling – illustrates yet another route
via which infrastructure control can be used for private and public
rights enforcement.

In 2013, as part of its program of opening up the top-level domain space
to hundreds of new top-level domains (like .app, .blog, .pharmacy,
.attorney, .brussels, .property, . . . joining the more familiar .com,
.edu, .org domains) ICANN inserted two new provisions into the
“Registry Agreement” that it requires operators of top-level domain
registries to sign. [21] [23] One provision (“Specification 7”)[22]
[24] requires registry operators to “implement and adhere to” a set
of “mandatory rights protection mechanisms (RPMs)” described in
ICANN’s “Trademark Clearinghouse.”[23] [25] This is a
“flow-through” requirement; that is, registries must include a
similar provision in their contracts with all registrars with whom they
do business, obligating the_registrars_ to implement the RPMs, and
registrars must include a similar provision in _their _contracts with
end-users (domain name registrants).

A second provision (“Specification 11”) requires registries to
comply with various “Public Interest Commitments” (PICs), one of
which requires registries to deal with (i.e., accept domain name
registrations from) _only_ those registrars who:

(a) include, in _their_ contracts with domain name registrants, a
provision “prohibiting registrants from distributing malware,
abusively operating botnets, phishing,_ piracy, trademark or copyright
infringement, fraudulent or deceptive practices, counterfeiting or
otherwise engaging in activity contrary to applicable law”;_

(b) “take reasonable and prompt steps to investigate” any reports
that registrants are engaging in any such activity “contrary to
applicable law”; and

(c) “respond appropriately” to such reports, “providing
consequences for such activities _including suspension of the domain
name.”_[24] [26]

Additionally, all participants in this contractual web – registries,
registrars, and registrants – must promise to “adhere to any
remedies ICANN imposes”[25] [27] should they not live up to these
PICs, including termination of their ICANN accreditation (and an
immediate end to their business operations).

Notably, these two provisions were not developed under ICANN’s
“consensus policy development process,”[26] [28] but were introduced
at the behest of specific constituencies: the IP rightsholders (Spec.
7), and the Government Advisory Committee (Spec 11).[27] [29]

One does not have to have too fertile an imagination to see how these
provisions could enlist registrars and registries in an ICANN-directed
process to enforce a broad range of laws – “_piracy, trademark or
copyright infringement, fraudulent or deceptive practices,
counterfeiting or [any] activity contrary to applicable law” –_ via
the DNS database entries. If ICANN were to choose to enforce these
contractual promises, registries and registrars would risk losing their
accreditation (and therefore their ability to continue their DNS-related
business activities in any fashion) if they did not satisfy _ICANN_ that
they are taking “appropriate steps” to suspend end-users who engage
in “piracy” or any activity “contrary to applicable law.
Registries and registrars would need to develop policies and procedures
for investigating charges of unlawful activity, and for suspending
domain name registrations based on a determination that unlawful
activity had taken place – subject to satisfying _ICANN_ that their
efforts are “reasonable” and “appropriate.” Is it reasonable and
appropriate – _in ICANN’s view_ – to revoke a domain name upon
receipt of a letter from local law enforcement officials? Or a letter
from the RIAA? Does the registrar have to notify the domain name
registrant before taking action? Hold a hearing to provide the operator
of the domain name an opportunity to defend him/herself? Examine the
sites to see if they are indeed acting “contrary to applicable law”?
Consult its lawyers about which law is “applicable” to the sites in
question, and whether the conduct in question violates it?

ICANN has strenuously disavowed any intention of enforcing these
contract terms in this way:

“ICANN cannot be put in the position of requiring suspension of domain
names on the basis of allegations of blasphemy, hate speech, holocaust
denial, political organizing, full or partial nudity or a host of other
content that may be illegal somewhere in the world. That would be
inconsistent with ICANN’s mission, ICANN’s limited remit, and
ICANN’s responsibility to operate in accordance with a
consensus-driven multistakeholder model.”[28] [30]

But what was the purpose of inserting these provisions into the
contracts if there were no intention of enforcing them? Why has ICANN
set up a new dispute resolution process to hear claims that
registries/registrars are not complying with these promises – the
PICDRP, see note 25 – if it does not intend to invoke that process?
How will ICANN manage to fend off the pressure from these (or other)
constituencies to require more active registrar/registry cooperation in
these enforcement tasks?[29] [31]

WHAT ARE WE TO MAKE OF THESE DEVELOPMENTS?

The examples above, though they differ from one another in a number of
important ways, share one critical feature: they each describe a
_governance_ scheme – the imposition of binding rules upon vast
numbers of Internet users – exercised by means of control over the DNS
databases and over access/entry thereto.

One does not have to be Tiresias the Seer to predict that we will be
seeing a great deal more of this kind of thing – or at least a great
deal more pressure, from private rightsholders and public authorities
alike, to introduce and implement this kind of thing – in the
future.[30] [32] These infrastructure-based systems are efficient in
ways that the ordinary conventional mechanisms of international law
cannot hope to match: fully automated judgment execution mechanisms that
can operate, virtually instantaneously, on anyone in any corner of the
planet. They solve – or, more precisely, they serve as a work-around
– the seemingly intractable problems of conventional international law
– choice of law, judgment execution, and scale – that have made
applying private or public law across the Internet so difficult. It is
entirely predictable – indeed, virtually inevitable – that they will
be pressed into service under many new guises and in many new
implementations in the years to come.

How should we be thinking about this development? Perhaps
governance-by-infrastructure is a new, innovative alternative to the
cumbersome traditional approach of relying on local law and local
courts, one that can help to bring the Rule of Law to the Internet,
protecting legal rights and enforce legal norms on a medium where such
protection and enforcement have been difficult to come by? Why _not_ use
the DNS, or other components of core Internet infrastructure, to catch
the bad guys and throw them off the Internet?

There are, I believe, many reasons why that is a bad idea. Though an
exhaustive compendium of all of the troubling features of
government-by-infrastructure regimes is beyond the scope of this paper,
there is a set of _core concerns_ that implementation of such regimes
inevitably raise, which can be organized into five categories: concerns
about Internet neutrality, legitimacy and institutional competence, due
process, free expression, and harm to third parties.

INTERNET NEUTRALITY

As has been extensively discussed in recent years – most notably, in
connection with the “net neutrality” debate – the basic Internet
design incorporates a powerful neutrality/non-discrimination principle,
generally known as the principle of “end-to-end design.”

The Internet is unusual among networks in putting most of the
intelligence in the computers at the edge of the network, rather than in
the infrastructure at the heart of the network. The network forwards
packets with only minor processing—all the heavy lifting takes place
on the transmitting and receiving computers. This approach of putting
intelligence at the edge of the network is known as the end-to-end
principle, and it is one of the keys to the Internet’s success thus
far.[31] [33]

Smart machines connected to a dumb network; complicated and
sophisticated applications running over a network that does little more
than moving bits around as directed by those applications. End-to-end
design counsels that core Internet infrastructure protocols should focus
to the maximum feasible extent on performing only that minimal
bit-transport function, while staying as simple, unintrusive, and open
as possible in all other respects.

Adherence to the end-to-end design principle has, without question,
contributed mightily to both the Internet’s astonishing growth, and to
the explosion of innovation and creativity that it has stimulated across
the globe.[32] [34] It is not, to be sure, some kind of sacred or
inviolable principle; even its most fervent adherents recognize that, as
the Internet continues to evolve, there may be cause for deviating from
the strict end-to-end model.[33] [35] But we should do so with great
care and exercising great caution, lest we interfere with a critical
source of the Internet’s power, and thereby kill the goose that is
laying the golden egg.

The inter-locking protocols and databases that constitute the
Internet’s DNS are optimized to perform one role as part of the
network’s core message-transport function: resolving names into IP
Addresses, quickly and reliably. All the processing required to
“discriminate” among messages – based upon their content, or the
identity of the sender or recipient – is kept _out_ of the core.

Governance-by-infrastructure upsets that careful delineation of
function.[34] [36] The DNS now has additional roles to play (requiring
additional processing) – helping to control copyright infringement, or
phishing, or consumer fraud, or the distribution of child pornography,
or human trafficking, or any number of other possibly worthwhile goals
– that reach far beyond the one task it is required to perform (_viz.,
_accurate name/address resolution). The DNS is no longer neutral, but an
instrument for discriminating against certain kinds of content and
certain users. The unforeseen and possibly unforeseeable consequences of
re-purposing Internet infrastructure in a manner contravening the
fundamental e2e principles that have guided the development of that
infrastructure up to now are likely to be severe.[35] [37]

LEGITIMACY

Governance-by-infrastructure raises profound – and profoundly
troubling – questions of legitimacy, authority, and institutional
competence. Whether or not one believes that access to the Internet is a
fundamental human right, the power to control access to the global
communications platform is a formidable one, and it should only be
exercised by those duly authorized to do so. To put the question
bluntly: What gives ICANN – or whomever is in control of DNS policy
implementation – the right to tell a Bangladeshi domain name
registrar, or a Brazilian domain name registrant, or a South Korean
domain name registry, that their respective businesses are no longer
operable because they have been eliminated from the DNS databases?
[38]That ICANN is not authorized to make global policy regarding the
appropriate steps necessary for the identification and elimination of
copyright infringement, or consumer fraud, or child pornography, or the
like is apparent from a glance at its structure and organization; though
it is indeed a “multi-stakeholder” institution, its community of
stakeholders represents – intentionally – a very narrow slice of the
larger Internet community, focused overwhelmingly on individuals and
entities involved in specialized technical tasks (IP addressing, naming,
and numbering). This is hardly the structure one would come up with when
designing an institution to tackle, on an Internet-wide basis, any of
those very difficult and politically contentious tasks.

DUE PROCESS

Efficiency of judgment entry and execution in
governance-by-infrastructure regimes is a double-edged sword. There may
well be, at this moment, hundreds of thousands, or more likely millions,
of domain names associated with Internet sites hosting infringing
content; the costs, in time and money, of providing each of them with
anything resembling due process – adequate notice, and a reasonable
opportunity to be heard before a neutral – so that a fair
determination can be made as to whether they are acting unlawfully or
not, are prodigious.

Those costs, however, must be borne, somewhere in the system – at
least, if we believe in the principle of due process and the rule of
law. But of course the core Internet infrastructure is almost entirely
in private hands, and private entities may not feel themselves bound to
respect user due process rights – especially when it is so costly to
do so.

FREEDOM OF EXPRESSION

> Domain names warrant special protection because, as Annemarie Bridy
> puts it, they are “dual-use” properties, enabling both lawful and
> unlawful activity and serving not only as “gateways to vast
> repositories of digital property but also (and relatedly) as
> instrumentalities of speech.”[36] [2]

A single domain name allegedly tainted by unlawful activity “may
provide access to a mix of unlawful and lawful content, [and] telling
the difference between the two can be challenging for judges even after
the benefit of full discovery. “Seizure” of allegedly offending
domain names is thus “the twenty-first century equivalent of
padlocking the bookstore.” Anyone who believes in the paramount value
of uninhibited free expression should be especially suspicious of
mechanisms that too-easily (and too-efficiently) take these speech
instrumentalities out of the hands of individuals.

THIRD-PARTY HARM

The hierarchical nature of the Internet’s DNS virtually assures that
the elimination, via “seizure” or cancellation, of individual
domains will affect large numbers of innocent third parties. Each level
of the domain name hierarchy can encompass a virtually unlimited number
of subdomains – _i.e., _each top-level domain can include many
millions of 2d-level domains, each of which can include many millions of
3d-level domains, each of which can include many millions of 4th-level
domains, and so on, down 127 levels.[37] [39] Many online services rely
on this feature to assign individual subdomains –
davidgpost.wordpress.com [40] – to users as a means of allowing them
to post their own content.[38] [41] Blocking the resolution of a domain
at any level (because of unlawful content or activity taking place at a
site utilizing that domain) necessarily means that _all_ lower-level
subdomains are blocked as well – even if they are completed
independent of the offending site and are pursuing entirely lawful
activities.

Perhaps the most egregious example of collateral damage resulting from a
domain seizure occurred . . . in February 2011, when ICE seized the
“mooo.com” domain for allegedly pointing to illegal content. The
seizure resulted in over 84,000 subdomains of mooo.com [42] being
blocked. Mooo.com [43] is a service that allows users to register
subdomains, which they can then point to Internet content hosted at any
IP address. No content is hosted immediately under the mooo.com [42]
domain; all content — including personal blogs, discussion forums,
small business sites, and sites where academic researchers share papers
and professional information — is hosted under subdomains that take
the form “username.mooo.com.” The content hosted under any
particular subdomain is wholly distinct from the content hosted under
other subdomains. _But because of illegal content allegedly present at
one such subdomain, all were blocked when the “parent domain,”
mooo.com [42], was seized_.

This kind of “collateral damage” by over-blocking is a persistent,
and may well be an inevitable, feature of governance-by-infrastructure
schemes.[39] [44] At the very least, it calls for the most assiduous
attention to due process protections so as to minimize, to the extent
possible, the damage such schemes can wreak on expression and
communication by innocent third parties.

CONCLUSION

Governance-by-infrastructure is here to stay, likely to be a part of the
global legal landscape far into the future. It is too efficient, and too
powerful, for it to be otherwise, and it needs to be deployed with the
greatest of care, for it raises deep questions of fairness,
transparency, and due process. The Internet has thrived as a neutral and
open communications platform, and its continued vibrancy depends on our
ability to maintain that neutrality and openness to the maximum extent
possible in the months and years to come.
-------------------------

  [45]About the Author: David G. Post is currently a Senior Fellow at the
New America Foundation’s Open Technology Institute [46]. Until his
retirement in Fall 2014, he was the I. Herman Stern Professor of Law at
the Temple University Law School, where he taught intellectual property
law, copyright, and the law of cyberspace. He also holds a Ph.D. in
physical anthropology, has published widely in the area of animal
behavior and evolutionary biology, practiced law at the Washington DC
law firm of Wilmer, Cutler & Pickering, and clerked for Justice Ruth
Bader Ginsburg at both the DC Circuit Court of Appeals and the Supreme
Court. Post is the author of In Search of Jefferson’s Moose: Notes on
the State of Cyberspace (Oxford), a Jeffersonian view of Internet law
and policy, awarded the 2009 Green Bag Award for Exemplary Legal
Writing. In addition, he is the (co)-author of Cyberlaw: Problems of
Policy and Jurisprudence in the Information Age (West), and has
published numerous scholarly articles on intellectual property law, the
law of cyberspace, and complexity theory (including the
most-frequently-cited intellectual property law review article published
in the last 75 years, Law and Borders: The Rise of Law in Cyberspace (48
Stanford L. Rev. 1367)(1996).
-------------------------

FOOTNOTES:

[1] [47] Senior Fellow, Open Technology Institute/New America
Foundation. Comments welcome: [email-masked].

[2] [48] Laura DeNardis, _Internet Points of Control as Global
Governance_, available
athttps://www.cigionline.org/sites/default/files/no2_3.pdf [49].

[3] [50] ICANN is the Internet Corporation for Assigned Names and
Numbers, the non-profit “multistakeholder” organization that
oversees DNS policy-making and policy-implementation. The authoritative
account of ICANN’s formation remains Milton Mueller, _Ruling the Root
_(2002). _See also_ David G. Post, _In Search of Jefferson’s Moose:
Notes on the State of Cyberspace,_ chap. 10 (“Names”) (2009) and
sources therein.

[4] [51] The UDRP was adopted in August, 1999, shortly after ICANN was
formed. _See UDRP Timeline,_ available
athttps://www.icann.org/resources/pages/schedule-2012-02-25-en [52]. On
the URDP, _see_https://www.icann.org/resources/pages/help/dndr/udrp-en
[53].

[5] [54] The substantive UDRP Rules require the trademark holder to show
that the challenged domain name (a) is “identical or confusingly
similar” to its trademark, and that the person who registered the
domain name (b) “has no legitimate rights” to it and (c) acted “in
bad faith.” Evidence of “bad faith” includes circumstances
indicating that the name was acquired “primarily for the purpose of
selling, renting, or otherwise transferring the domain name registration
to the . . . owner of the trademark or to a competitor of that
complainant . . .” _See Uniform Dispute Resolution Policy, _available
athttps://www.icann.org/resources/pages/policy-2012-02-25-en [55].

[6] [56] On the DNS generally, _see_ Post and Kehl, _Controlling
Internet Infrastructure, Part 1, _at 3-8, available
athttp://www.newamerica.org/oti/controlling-internet-infrastructure/
[57], or http://tinyurl.com/q8eoyy4 [58]; National Research Council,_The
__Internet’s Coming of Age_ (2001); David G. Post, _In Search of
Jefferson’s Moose: Notes on the State of Cyberspace,_ chap. 10 (2009);
National Academy of Sciences, _Signposts in Cyberspace: The Domain Name
System and Internet Navigation_ (2005), available
athttps://www.cs.cornell.edu/people/egs/beehive/narc-dns.pdf [59].

[7] [60] A “registrar” is an entity that sells (or otherwise
distributes) access to individual domain names to members of the public
(“registrants”). GoDaddy, Network Solutions, Register.com [61], and
Tucows are among the better-known domain name registrars. A
“registry” is an entity that manages and controls the authoritative
database (“zone file”) containing the names and IP addresses within
each top-level domain (“TLD” – _e.g., _.com, .org, .biz, .uk,
etc.). Registries do not interact directly with the public, but receive
registration information, which they implement in the TLD zone file,
from the registrars.

[8] [62] Chapter 4 (“The ICANN-based Contractual Web”) of Lee
Bygrave’s _Internet Governance by Contract_ (2015) contains an
outstanding analysis of ICANN’s contractual undertakings and the
contractual basis for its powers. _See also Controlling Internet
Infrastructure_, _supra_ note 6. at 21-24.

[9] [63]_See_ Section 3.8 of ICANN’s Registrar Accreditation Agreement
(obligating registrar to comply with UDRP), available
athttps://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en#raa
[64].

[10] [65] It should be noted that ICANN does not exercise contractual
control over the _entire_ DNS; most of the country-code TLDs
(“ccTLDs” – _e.g., _.uk, .br, .jp, etc.) do not have direct
contractual relationships with ICANN, and are not obligated to enforce
UDRP judgments or impose a requirement on registrants that they comply
with the UDRP rules (though some have done so voluntarily). See
_Controlling Internet Infrastructure, supra _note 6, at Box 3.

[11] [66] _See_ _e.g_. Christie, _Online Dispute Resolution – The
Phenomenon Of The UDRP, _in Torremans (ed), _Research Handbook on
Cross-Border Enforcement of Intellectual Property_ (forthcoming 2015),
available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2433380
[67]:

“The system has shown it is capable of resolving cross-border IP
disputes in a timely manner and at very low cost. It has delivered
largely consistent outcomes across a huge volume of cases, while
evolving to address scenarios that were unforeseen and unforeseeable at
its implementation. It has . . . won international respect as an
expedient alternative to judicial options for resolving trademark
disputes arising across multiple national jurisdictions.”

[12] [68] Compare Christie’s treatment of the UDRP, _id.,_ with
Komaitis, _The Current State of Domain Name Regulation: Domain Names as
Second Class Citizens in a Mark-Dominated World_ (Routledge 2012) (UDRP
is “based on illegitimate grounds, its procedures are substantially
flawed and unfair, it restricts the rights of domain name registrants,
and it is crowded with examples of inconsistent and biased
decisions”), and Geist, _Fair.com [69]? An Examination of the
Allegations of Systemic Unfairness in the ICANN UDRP_, available at
http://aix1.uottawa.ca/~geist/geistudrp.pdf [70]).

[13] [71] James Grimmelmann, _T__he Internet is a Semicommons_, 78
Fordham L. Rev. 2800, 2803 (2010).

[14] [72] That is, the DNS architecture and protocols are optimized to
process vast amounts of domain name registration information, and to
propagate that information across the millions of Internet domain names
servers, quickly and accurately. A registrar’s “Cancel” or
“Modify” command that is issued in response to a UDRP arbitrator’s
order is processed in precisely the same manner as the many hundreds of
thousands of such commands circulating through the DNS on a daily basis
in the ordinary course.

[15] [73] UDRP proceedings are substantially less complex, less
expensive, and less time-consuming than, _e.g., _filing a
cyber-squatting complaint under the federal Anti-Cybersquatting
Protection Act in U.S. federal court. _See_ Kilpatrick, ICANN Dispute
Resolution Vs. Anticybersquatting Consumer Protection Act Remedies, 2002
Hous. Bus & Law Rev., available
athttp://www.hbtlj.org/v02/v02_kilpatrick.pdf [74]; World Intellectual
Property Organization, FAQ: Internet Domain Names, available at
http://www.wipo.int/amc/en/center/faq/domains.html [75] (most UDRP
proceedings are concluded within two months, and cost between $1500 and
$2000 dollars (not including lawyers’ fees, if any).

[16] [76] _See _Lemley, Levine, & Post, “Don’t Break the
Internet,” available at
http://www.stanfordlawreview.org/online/dont-break-internet [77], for a
detailed description and analysis of SOPA/PIPA; _see also _Zittrain,
Albert, & Solow-Niederman, “A Close Look at SOPA,” available at
http://blogs.law.harvard.edu/futureoftheinternet/2011/12/02/reading-sopa
[78]. Technically speaking, authorizing the domain name “seizure”
was accomplished by authorizing courts to proceed _in rem _– against
the domain name itself, rather than _in personam _against the operator
of the website or the owner of the domain. Styling them as _in rem_
meant that the court would have had jurisdiction to adjudicate the claim
without hearing from (or having personal jurisdiction over) the operator
of the site or the owner of the domain, which would be constitutionally
impermissible in an _in personam _action.

In this context, of course, “seizure” is a legal fiction; the court
wouldn’t take actual “possession” of anything, it would merely
have the right to order the relevant domain name registry to take
certain steps with respect to the name, much in the manner of the UDRP.

[17] [79] _See_ Benkler _et al_., “Social Mobilization and the
Networked Public Sphere: Mapping the SOPA-PIPA debate,” available
athttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=2295953 [80], for
an extraordinarily illuminating analysis of how the public campaign
against SOPA/PIPA developed over time. _See also_ Larry Downes, “The
Revolt Against Congress’ New Internet Piracy Proposals,” available
at
http://www.forbes.com/sites/larrydownes/2011/11/28/the-revolt-against-congresss-new-internet-piracy-proposals
[81].

[18] [82] “Don’t Break the Internet,” _supra_ note 16; _see_
Benkler et. al., _supra_ note 17, at 33-34, for an extended analysis of
the effect of this publication on the anti-SOPA/PIPA movement.

[19] [83] “Don’t Break the Internet,” _supra_ note 16. A number of
other influential documents from within the technical community also
made the argument that SOPA/PIPA threatened the security and stability
of Internet’s underlying technical infrastructure._See_ Internet
Society, “Perspectives on Domain Name System (DNS) Filtering,”
available athttp://www.isoc.org/internet/issues/dns-filtering.shtml
[84]; Crocker et al., “Security and Other Technical Concerns Raised by
the DNS Filtering Requirements in the PROTECT IP Bill,” available at
http://domainincite.com/docs/PROTECT-IP-Technical-Whitepaper-Final.pdf
[85].

[20] [86] Annemarie Bridy, “Carpe Omnia: Civil Forfeiture in the War
on Drugs and the War on Piracy,” 46 Ariz. St. L. Rev. 683 (2012),
available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2378633
[87]; _see also_ Karen Kopel, “Operation Seizing Our Sites: How the
Federal Government is Taking Domain Names Without Prior Notice,”
available
athttp://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1994&context=btlj
[88]

[21] [89] _See_ Post, “ICANN, Copyright, and the ‘Public
Internet,’” available at
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/03/09/icann-copyright-infringement-and-the-public-interest/
[90]; Controlling Internet Infrastructure, _supra_note 16, at Box 5
(“ICANN as Global Law Enforcer”).

[22] [91] _See_ Specification 7, ICANN Base Registry Agreement,
available
athttps://www.icann.org/resources/pages/registries/registries-agreements-en
[92].

[23] [93] _See_
http://www.icann.org/en/resources/registries/tmch-requirements [94]

[24] [95] _See_ Specification 11, ICANN Base Registry Agreement,
available
athttps://www.icann.org/resources/pages/registries/registries-agreements-en
[92].

[25] [96] ICANN has set up a new dispute resolution process – the
“PICDRP” – to enforce registries’ obligations under
Specification 11. _See_
https://www.icann.org/resources/pages/picdrp-2014-01-09-en [97].

[26] [98] ICANN’s “Consensus Policy Development Process” is
described in Annex A to the ICANN Bylaws, available
athttps://www.icann.org/resources/pages/governance/bylaws-en [99].

[27] [100] _See_ GNSO gTLD Registries Stakeholder Group Statement,
available at
https://forum.icann.org/lists/comments-base-agreement-05feb13/pdfdrhgnqELY3.pdf
[101].

[28] [102] Alan Grogan (ICANN Chief Compliance Officer), “ICANN is not
the Internet Content police,” available
athttps://www.icann.org/news/blog/icann-is-not-the-internet-content-police
[103].

[29] [104] _See_ Post, supra note 21, for a description of efforts by
the Motion Picture Association of America and the Recording Industry
Association of America in this direction.

[30] [105] _See_ Milton Mueller, _Ruling the Root_ (2002) at 219
(discussing the “use and exploitation of data generated by Internet
identifiers to facilitate surveillance and control of Internet users by
law enforcement agencies,” and concluding that “if the ICANN regime
survives, this aspect of policymaking will probably play a much larger
role in the future [inasmuch as] the use of a centralized identification
mechanism that gives authorities both the ability to identify private
actors and some control over their access to cyberspace will probably
prove to be too tempting to pass up”).

[31] [106] Felten, “The Nuts and Bolts of Net Neutrality,” available
at
https://www.cs.princeton.edu/courses/archive/fall09/cos109/neutrality.pdf
[107]. _See also_ Clark and Blumenthal, “Rethinking the Design of the
Internet: The End-to-End Arguments vs. the Brave New World,” available
at http://nms.lcs.mit.edu/6829-papers/bravenewworld.pdf [108]:

“End to end arguments suggest that specific application-level
functions usually cannot, and preferably should not, be built into the
lower levels of the system—the core of the network. Even if parts of
an application-level function can potentially be implemented in the core
of the network, the end to end arguments state that one should resist
this approach if possible.”

Lemley and Lessig, “The End of End-to-End: Preserving the Architecture
of the Internet in the Broadband Era,” 48 UCLA L. Rev 925 (2001)
(“The end-to-end argument counsels that the ‘intelligence’ in a
network should be located at the top of a layered system – at its
‘ends,’ where users put information and applications onto the
network. The communications protocols themselves (the ‘pipes’
through which information flows) should be as simple and as general as
possible”); Wu, “Application-Centered Internet Analysis,” 85 Va.
L. Rev 1163 (1999) (“end-to-end holds that, wherever possible,
function should not be placed at the lower-levels of a network system
– rather, everything possible should be left to the applications at
the ‘ends.’ In other words, the lower-level protocols should focus
only on the minimal function of transmitting data, and in all other
respects be kept as simple, unintrusive, and open as possible”); Post,
_supra_ note 3:

“In an end-to-end network, the Network does the minimum number of
tasks required to get messages from one place to another. Network Layer
protocols are stripped down to their essentials; they do only what is
necessary to get bit-strings where they are supposed to go. All other
functions are left for the senders and the recipients, the network
end-points . . . As long as messages are formatted in accordance with
the Network Layer addressing rules, the Network protocols will get them
to the right place; what happens next is none of its concern . . . Smart
machines, connected to a dumb network. Complicated and sophisticated
applications, and a network doing nothing more than moving bits around
as directed by those applications. That’s the Internet. All the
interesting stuff is at the edges the network just gets the bits there,
as quickly and efficiently as possible.”

[32] [109] Lessig and Lemley, _supra_ note 31:

“The effect of [end-to-end design] has been profound. By its design,
the Internet has enabled an extraordinary creativity precisely because
it has pushed creativity to the ends of the network. Rather than relying
upon the creativity of a small group of innovators working for companies
that control the network, the end-to-end design enables anyone with an
Internet connection to design and implement a better way to use the
Internet. Because it does not discriminate in favor of certain uses of
the network and against others, the Internet has provided a competitive
environment in which innovators know that their inventions will be used
if useful. By keeping the cost of innovation low, it has encouraged an
extraordinary amount of innovation in many different contexts. By
keeping the network simple, and its interaction general, the Internet
has facilitated the design of applications that could not originally
have been envisioned.”

_See also_ Wu, _supra_ note 31 (describing end-to-end’s “deeper
effects” as “giving application writers the freedom to innovate
whenever and however they like [while] confining the network itself to
simple functions of broad usage,’ thereby allowing “future
applications unknown or unpredictable at the time of design.. . . And at
least in part as a result of these features, this decade has witnessed
an astonishing development both of Internet applications existing at the
beginnings of the Internet (like email) and totally new and extremely
innovative applications. All of this might have been impossible, or at
least difficult, if the Internet had not had an end-to-end design.”).

[33] [110] _See_ Clark and Blumenthal, _supra_ note 31.

[34] [111] _See_ note 19.

[35] [112] _See_ _id_.

[36] [113] Bridy, _supra_ note 20.

[37] [114] _See Controlling Internet Infrastructure_, _supra_ note 6, at
3-9 (describing how each of the millions of 2d-level domains within the
.edu top-level domain (_e.g._, StateU.edu [115]) can support a vast
number of 3d-level domains (_e.g., _Compsci.StateU.edu [116]), each of
which can support a vast number of 4th-level domains
(Admin.Compsci.Stateu.edu [117]), and so on).

[38] [118] Familiar examples include blogspot.com [119], wordpress.com
[120], wix.com [121], squarespace.com [122], and rojadirecta.com [123],
each of which operates a “hosting service” by assigning a subdomain
(_e.g., _[username].blogspot.com]) to individual users. Hosting services
operating in this manner, in the aggregate, account for millions of
individual websites.

[39] [124] _See_ sources cited in note 20. _See also_ “Brief of Amici
Curiae Electronic Frontier Foundation, Center For Democracy and
Technology, and Public Knowledge in Support of Puerto 80’s Petition
For Release Of Seized Property,” available
athttps://www.eff.org/files/filenode/puerto80_v_US/2011-06-20-rojadirecta.pdf
[125] (detailing “overblocking” by DHS “seizure” operations,
including a single “seizure” that eliminated over 80,000
non-infringing websites); _CDT v. Pappert_, 337 F. Supp. 2d 606 (E.D.
PA. 2004) (in an effort to comply with blocking orders relating to fewer
than 400 child pornography websites, more than a million completely
unrelated and innocent websites were blocked).

Links:
------
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[100] 
http://www.ipjustice.org/digital-rights/internet-infrastructure-and-ip-censorship-by-david-post/#_ftnref27
[101] 
https://forum.icann.org/lists/comments-base-agreement-05feb13/pdfdrhgnqELY3.pdf
[102] 
http://www.ipjustice.org/digital-rights/internet-infrastructure-and-ip-censorship-by-david-post/#_ftnref28
[103] 
https://www.icann.org/news/blog/icann-is-not-the-internet-content-police
[104] 
http://www.ipjustice.org/digital-rights/internet-infrastructure-and-ip-censorship-by-david-post/#_ftnref29
[105] 
http://www.ipjustice.org/digital-rights/internet-infrastructure-and-ip-censorship-by-david-post/#_ftnref30
[106] 
http://www.ipjustice.org/digital-rights/internet-infrastructure-and-ip-censorship-by-david-post/#_ftnref31
[107] 
https://www.cs.princeton.edu/courses/archive/fall09/cos109/neutrality.pdf
[108] http://nms.lcs.mit.edu/6829-papers/bravenewworld.pdf
[109] 
http://www.ipjustice.org/digital-rights/internet-infrastructure-and-ip-censorship-by-david-post/#_ftnref32
[110] 
http://www.ipjustice.org/digital-rights/internet-infrastructure-and-ip-censorship-by-david-post/#_ftnref33
[111] 
http://www.ipjustice.org/digital-rights/internet-infrastructure-and-ip-censorship-by-david-post/#_ftnref34
[112] 
http://www.ipjustice.org/digital-rights/internet-infrastructure-and-ip-censorship-by-david-post/#_ftnref35
[113] 
http://www.ipjustice.org/digital-rights/internet-infrastructure-and-ip-censorship-by-david-post/#_ftnref36
[114] 
http://www.ipjustice.org/digital-rights/internet-infrastructure-and-ip-censorship-by-david-post/#_ftnref37
[115] http://StateU.edu
[116] http://Compsci.StateU.edu
[117] http://Admin.Compsci.Stateu.edu
[118] 
http://www.ipjustice.org/digital-rights/internet-infrastructure-and-ip-censorship-by-david-post/#_ftnref38
[119] http://blogspot.com
[120] http://wordpress.com
[121] http://wix.com
[122] http://squarespace.com
[123] http://rojadirecta.com
[124] 
http://www.ipjustice.org/digital-rights/internet-infrastructure-and-ip-censorship-by-david-post/#_ftnref39
[125] 
https://www.eff.org/files/filenode/puerto80_v_US/2011-06-20-rojadirecta.pdf

-- 
<pre>--
Joana Varon
@joana_varon
https://antivigilancia.org
Fingerprint
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</pre>

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From: Stephane Bortzmeyer <[email-masked]>
Date: Tue, 25 Aug 2015 20:33:41 +0200

On Mon, Aug 03, 2015 at 06:48:27PM +0200,
 Joana Varon <[email-masked]> wrote 

> This might be interesting to have a look at.
...
> http://www.ipjustice.org/digital-rights/internet-infrastructure-and-ip-censorship-by-david-post/

Good paper. I regret a sloppy terminology, for instance calling "DNS"
domain registration. The DNS is a protocol to transmit data from
servers to clients. Domain name registration is something different,
involving different techniques and people. Today, many registries allo
you to register a domain name without the domain being published in
the DNS.

For a long time, the same organisations were doing both. Today, most
new gTLD registries no longer operate DNS servers, they subcontract.

Also, the paper is very US-centric. It mentions the SOPA/PIPA failure
but not the fact that this technique (lying DNS resolvers) is actively
used in many countries.